Preview
INDEX-NO. 700946/2011
(FILED: QUEENS COUNTY CLERK 1072872013)
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 10/28/2013
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
nen peennennnnen cnn xX
ANA PASTRANA and CARMEN QUINIO, Index No.: 700946/2011
Plaintiffs, NOTICE OF CROSS-MOTION
-against- Assigned To:
Hon. Augustus C. Agate
PETER GIRANI, EGIDIO GIRANI and
JACQUELINE LARROCA,
Defendants Re D er 12, 2
pone eee nee nee en ene ennee nnn: ——X
MOVING PARTY: PICCIANO & SCAHILL, P.C.
Attorneys for Defendant
JACQUELINE LARROCA
RETURN DATE, TIME & PLACE: November 12, 2013, Centralized
Motion Part, Courtroom 25, located at
88-11 Sutphin Boulevard, Jamaica, New
York 11435 at 2:15 p.m.
SUPPORTING PAPERS: Affirmation of ANDREA E. FERRUCCI
and Annexed Exhibits.
RELIEF REQUESTED: An Order, pursuant to CPLR Section
3212, for summary judgment due to
plaintiff's failure to meet the threshold
limits set by New York State Insurance
Law, Section 5102 and 5104.
ANSWERING AFFIDAVITS: Must be served at least 7 days prior to
the return date of this motion, pursuant
to CPLR 2214(b).
CERTIFICATION: Pursuant to 22 NYCRR 130-1.1, it is
hereby certified that to the best of the
undersigned’s _. knowledge, information
and belief formed after an inquiry
reasonable under the circumstances, the
presentation of the annexed papers or
contentions therein are not frivolous as
defined by 22 NYCRR 1.1 (c).
Dated: Westbury, New York
October 24, 2013
@ etc.,
[
VA
fh by Ve
DREA E. FER RUCCI
RICCIANO & S' PAHILL, P.C
Attorneys for De efendant
JACQUELINE LARROCA
900 Merchants Concourse, Suite 310
Westbury, New York 11590
(516) 294-5200
Our File No.: 0326955350101012
TO! ZWIRN & SAULINO, P.C
Attorneys for Plaintiffs
2606 East 15" Street, Suite 205
Brooklyn, New York 11235
(718) 615-7400
Your File No.: 11-1513
SHAYNE, DACHS, SAUER
& DACHS, LLP
Attorneys for Defendants
PETER GIRANI and EGIDIO GIRANI
114 Old Country Road, Suite 410
Mineola, New York 11501
(516) 747-1100
Matter No.: SW-728
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
—_ ne. on
ANA PASTRANA and CARMEN QUINIO, Index No.: 700946/2011
Plaintiffs, AFFIRMATION
-against-
PETER GIRANI, EGIDIO GIRANI and
JACQUELINE LARROCA,
Defendants.
nn en ee en ete ——-X
ANDREA E. FERRUCCI, an attorney duly licensed to practice law in the Courts of
the State of New York, under penalty of perjury, affirms the following:
1 I am an associate of the law firm of Picciano & Scahill, P.C., attorneys for
the defendant, JACQUELINE LARROCA, and as such, I am fully familiar with the facts,
circumstances and pleadings in the above action.
2 I make this affirmation in support of the within motion for an Order,
pursuant to CPLR Section 3212, granting summary judgment in favor of the defendant,
JACQUELINE LAROCCA, as against the plaintiff, ANA PASTRANA, on her complaint.
3 The above captioned action represents a claim for bodily injury allegedly
sustained by the plaintiff, ANA PASTRANA, following a motor vehicle accident, which
occurred on July 26, 2010, at approximately 2:03 p.m. on Francis Lewis Boulevard at its
intersection with 47" Avenue, Queens County, New York.
_ 4 This action was instituted by the service of a summons and complaint upon
the defendant, JACQUELINE LAROCCA, on or about December 7, 2011. Issue was joined
with the defendant, JACQUELINE LAROCCA, by the service of a verified answer on March
5, 2012, Issue was jointed with the defendants, PETER GIRANI and EGIDIO GIRANI, by
the service of a verified answer on March 14, 2012. A copy of the plaintiff's summons and
complaint and the pleadings thereto are annexed hereto and made a part hereof as
Exhibit “A”.
5 The plaintiff, ANA. PASTRANA, alleges to have sustained the following
injuries as set forth in the plaintiffs verified bill of particulars, a copy of which is annexed
hereto and made a part hereof as Exhibit “B”.
e Multilevel cervical disc herniations with broad-based disc herniations at
C4-5 and C5-6 with ventral epidural space effacement and proximal right
neural foraminal stenosis at C5-6;
Left paracentral disc herniation at C6-7 with cord indentation and
proximal left neural foraminal stenosis;
C6 radiculopathy on the right;
Traumatic paracervical myofascitis with right radiculitis;
e Herniated cervical discs with right radiculopathy.
6 A close review of the medical records in this proceeding will prove to this
Court that the plaintiff did not suffer a "serious injury" as required by New York State
Insurance Law Section 5101, et seq., Licari_v. Elliot, 57 N.Y.2d 230 (1982) and its
progeny.
7 On August 5, 2013, the plaintiff, Ana Pastrana, was examined by Dr. Lisa
Nason, at the request of the defendant herein. Dr. Nason’s affirmed medical report is
annexed hereto and made a part hereof as Exhibit “C”. Dr. Nason‘s examination revealed
full range of motion of the cervical and lumbar spines. Dr. Nason also found the plaintiff
to The cervical foraminal compression test was negative. Dr. Nason concluded after a
review of the plaintiff's medical records and a thorough physical examination as follows:
“Status post cervical and lumbar sprain/strain,
resolved.”
“Based on today’s findings, it is my opinion that
claimant may work as a customer service representative and
perform her daily living activities without boundaries or
restrictions.”
8 On August 12, 2012, the plaintiff, ANA PASTRANA, was examined by Dr.
Jean-Robert Desrouleaux at the request of the defendant herein. Dr. Desrouleaux’s
affirmed medical report is annexed hereto and made a part hereof as Exhibit “D”. Dr.
Desrouleaux’s examination revealed full cervical and lumbar spine range of motion. Dr.
Desrouleaux concluded after a thorough physical examination and review of the medical
records as follows:
“Status post cervical and myofascitis, resolved.”
“The claimant is able to function in her pre-accident
capacity and carry out work duties and day-to-day activities
without neurologic restriction.”
9. A copy of the plaintiff, ANA PASTRANA,! examination before trial is annexed
hereto and made a part of Exhibit “E”.
° The plaintiff was involved in a motor vehicle accident on July 26, 2010. Pages 6-7.
As a result of the accident, the plaintiff's neck and right shoulder struck the right
door. Pages 43-44,
Police arrived at the scene and spoke with the plaintiff at the scene. Page 40,
The plaintiff mace complaints regarding her neck and back to the officer. Page 40.
The plaintiff did not ask for an ambulance nor was one offered. Page 40.
The plaintiff left the scene in the same vehicle that was involved in the accident.
Page 41.
The plaintiff never sought treatment at a hospital as a result of the subject
accident. Page 48.
The plaintiff first sought treatment on the day following the accident at a doctor's
office located on Metropolitan Avenue. Pages 46-47,
The plaintiff made complaints regarding her neck and back. Page 53.
On her first visit with the doctor, she was told she was going to be sent for an MRI.
Page 54.
+ Your affirmant’s office was only provided a copy of the plaintiff, Ana Pastrana’s ‘transcript. Upon information and
belief co-defendants, Peter Girani and Egidio Girani, forwarded the transcript to plaintiff's counsel in compliance with
CPLR 3116 for review and execution.
The plaintiff began a course of treatment at the Metropolitan Avenue facility which
consisted of massage, acupuncture, electrical stimulation, and heat therapy. Pages
58-62.
The plaintiff went to therapy for approximately six to eight (6-8) months. Page 62.
The plaintiff was never recommended for surgery as a result of the subject
accident. Page 115.
The plaintiff has not sought any further medical treatment regarding the injuries
from this accident since the spring of 2011. Pages 87-89.
The plaintiff was never examined by a psychologist. Page 85.
Approximately two years prior to the plaintiff was an “off the books” babysitter.
Pages 82-83.
Prior to the accident, the plaintiff was employed, “off the books” part-time (32
hours a week) as a waitress at an Italian restaurant. Pages 65-69.
The plaintiff did not return to her waitressing position following the accident for
personal reasons and not for anything to do with her physical condition following
the subject accident. Page 115.
The plaintiff could not recall receiving any government aid 2009 and did not receive
any government aid in 2010. Page 84.
On the date of the deposition the plaintiff was employed, full-time, by Huffman
Koos in customer service for approximately one year. Pages 91-92.
e On the date of the accident, in addition to being a waitress, the plaintiff was also
employed at a surgical supply company. Pages 103-105.
¢ The plaintiff did not return to the surgical supply company following the accident
for personal reasons and not for any injuries related to the subject accident. Page
115.
The plaintiff was ever confined to her home or bed as a result of this accident.
Page 113.
10. It Is evident from a review of the plaintiff's medical records, the affirmed
medical reports of Dr. Lisa Nason and Dr. Jean-Robert Desrouleaux and the plaintiff's
deposition transcript that the plaintiff in this matter did not sustain serious injuries and
should not be allowed compensation outside of the no-fault system. The plaintiff’s
deposition testimony indicates that she ceased her employment following the subject
accident due to personal reasons and not due her physical condition following the
subject accident. Furthermore, her testimony indicates that she was able to seek
further employment following the subject accident. Finally, it must be noted that the
plaintiff clearly testified that she was fever confined to her home or bed as a result of
the subject accident. As such, the plaintiff's testimony was insufficient to demonstrate
that she was restricted from “substantially all” of her usual and daily customary
activities as a result of the subject accident for the required 90/180 day period. See
Cantave v. Gelle, 60 AD 3d 988. Rather her testimony indicated that the cessation of
her employment was the result of unrelated personal issues.
11. Even if the plaintiff was to submit evidence that she suffered from herniated
discs and bulging discs, such injuries do not in and of themselves constitute serious injury.
See Noble v. Ackerman, 252 A.D.2d 392, 394 (2™ Dept 1998) c.f. Puma _v. Player, 233
A.D.2d 308; Guzman v. Paul MichaelManagement, 266 A.D. 2d 508 (1999). Rather, the
plaintiff is required to "provide objective evidence of the extent or degree of the alleged
physical limitation resulting from the injuries and their duration.” Noble _v. Ackerman,
supra at 394; Arjona v. Calcano, 7. A.D.3d. 279 (2004).
12. Pursuant to Sections 5102 and 5104 of the Insurance Law, an individual
may not institute an action for personal injuries arising out of an automobile accident
unless that individual has suffered a "serious" injury. A "serious" injury is statutorily
defined as: “death; dismemberment; significant disfigurement; fracture; loss of fetus;
permanent loss of use of a body, organ, member, function or system; permanent
consequential limitation of use of a body organ, significant limitation of use of a body
function or system; an injury or impairment of a non-permanent nature which prevents
the injured person from substantially all of the material acts which constitute such
person's usual and customary daily activities for not less than ninety (90) days during the
one hundred eighty (180) days immediately following the occurrence of the injury or
impairment." For example, in Harrel v. Miles, 603 N.Y.S.2d 894 (1993), an injury involving
a narrowed intervertebral disc space, post concussion syndrome and a lumbar sprain
without neurological complications did not meet the definition of "serious".
13. The legislative purpose in enacting these sections was to “...significantly
reduce the number of automobile personal injury accident cases litigated in the courts,
and thereby help contain the no-fault premium". (Memorandum of State Executive Dept.,
1977 McKinney's Session Laws of N.Y., p. 2448). These statutes place "...a reasonable
restriction and further limitation on the right to sue, in order to preserve the valuable
benefits of no fault, at an affordable cost." (1977 McKinney's Session Laws of N.Y., p.
2450). The curtailment of costly and lengthy court trials, however, is not the sole purpose
of the no-fault law. The legislature also intended to eliminate litigation involving minor,
insignificant or specious personal injuries arising from automobile accidents. Requiring
that every case, regardless of the extent of the injuries, be decided by a jury would
subvert the intent of the legislature and destroy the effectiveness of the statute. Thus, it
is intended that the Court should decide the threshold question of whether the evidence
would warrant a jury finding that the injury falls within the class of injuries that are
excluded from judicial remedy, under no fault. (See Licari v. Elliot, 57 N.Y.2d 230 (1982)
and Stossell v. Fleyshmahker, 117 Misc.2d 454 (1983); Velez v. Cohan, 203 A.D. 2d 156.
14. (a) Permanent Loss of Use of a Body Organ,
Member, Function or System
Permanent Consequential Limitation of
a Body Organ or Member:
In order for an injury to qualify as a permanent loss of use, or a permanent
consequential limitation, the injury must be permanent, it must cause a limitation or a loss
of use, and it must be causally related to the accident. The term permanent
10
"consequential" loss is used “in the sense of important or significant." 1 NY PJI 288A [2d
ed] [1983 Supp], p.101. Dwyer v, Tracey, 105 A.D.2d 476, 480 N.Y.S.2d 781; See Booker
v. Miller, 258 A.D. 2d 783. Acute cervical and lower back sprains resulting in neck and
back pains, (Keena_v. Trappen, 294 A.D. 2d 405 (2002); DeFillipo v. White, 101 A.D.2d
801 (1984); Maenza
v. Letkajornsook, 172 A.D.2d 500; 567 N.Y.S.2d 850 (1991); Godden
_ Carman, 169 A.D.2d 812; 565 N.Y.S.2d'181 (1991), Hemmes v. Twedt 580 N.Y.S.2d
510 (1992); and fear of driving, being in automobiles and nightmares requiring
psychotherapy (Nolan v. Ford, 100 A.D. 2d 579 (1985)) do not qualify as a permanent
"consequential" loss. The allegation of permanency must be substantiated by credible
medical evidence; mere allegations contained in the pleadings, in the plaintiff's affidavit, or
in the attorney's affidavit, are insufficient to prove permanency. (See Ferguson v.
Temmons, 79 A.D.2d 1090). Any medical evidence offered in support of a claim of
permanency must contain objective findings of permanency. It has been specifically held
by the Appellate Division that a medical doctor's analysis, which is essentially an exercise
in speculation, especially when based on the subjective complaints of the plaintiff, does
not rise to the level of credible medical evidence required to support a claim of
permanency. (See: Dwyer v. Tracey, 105 A.D.2d 476; 480 N.Y.S.2d 781 (1984); Torres v.
Silva 508 N.Y.S.2d 523 (1986); Saladino
v. Meury, 597 N.Y.S.2d 713 (1993). Conclusory
statements by a physician, than an injury is "permanent", are insufficient as a matter of
law. See Vaughan v. Baez, 305 A.D. 2d 101 (2003); Williams v. Howe, 297 A.D. 2d 671
(2002). If the injury is superficial or temporary in nature, it clearly fails to meet the
ll
threshold. Allegations of pain, whether constant or intermittent, if unsupported by
objective medical proof, are likewise insufficient to meet the threshold. See Copland v,
Kasalica, 6 A.D. 3d 253 (2004).
The Court of Appeals has specifically held that a medical report, indicating that
plaintiff's injuries "may" be permanent, is insufficient proof of permanency. (See Jones v.
Sharpe, 472 N.Y.S.2d 779, affd 479 N.Y.S.2d 520; Mickelson v. Padang, 237 A.D. 2d 495
(1997)). If loss of use, or limitation of use is to be shown, objective medical evidence
must show that the body organ, member, function or system operates only on a limited
basis, or operates fully, but with concurrent pain. (See: Dwyer v. Tracey, 105 A.D.2d 476,
480 N.Y.S.2d 781 (1984). An injury involving only a mild limitation or mild discomfort
does not meet the threshold. (See Licari v. Elliot, 57 N.Y.2d 230; see Bader v. Santana,
483 N.Y.S.2d 143; Philpotts v. Petrovic 554 N.Y.S.2d 289 (1990); Coughton v. Donnelly,
567 N.Y.S.2d 835, 1722 A.D.2d 480 (1991). The Court of Appeals has held, for example,
that a burning, snapping sensation in the knee, even when confirmed by a neurologist's
nerve conduction study, yet which allows the plaintiff to perform essentially
the same
work after the injury, does not qualify as a "serious" injury. (See Jones v. Sharpe, 472
N.Y.S.2d 779, affd 479 N.Y.S.2d 520). In short, the plaintiff must not only suffer “an
injury", to meet the threshold, he must demonstrate that he has suffered a "serious
injury", within the statutory definitions, (See Licari_v. Elliot, supra). As with allegations of
permanency, the allegations of loss of use, or limitation of use, must also be substantiated
with credible objective medical evidence.
12
(b) Significant Limitation of Use of
aFunction
Body or System
A significant limitation of use is one which involved more than merely minor pain or
limitation of use. A minor, mild, temporary, or slight limitation of use is an insignificant
limitation, and does not meet the threshold as a matter of law. (See Licari v. Elliot, 57
N.Y.2d 2309 (1982); Thrall v. City of Syracuse, 464 N.Y.S.2d 1022, rev'd 411 N.Y.S.2d
51); Ray v. Ficchi, 578 N.Y.S.2d 944 (1991). For example, it has been held that second
degree burns to the back and arm, covering fifteen (15%) percent of the body, causing
pain in the abduction of the arm, and discomfort in sleeping for a period of two (2)
months, is only a "mild limitation" or "temporary discomfort". (See Bader v. Santana, 483
N.Y.S.2d 143). Mere straightening of the lordotic curve and even persistent headaches.
(See Davies v. Johnson, 110 Misc. 381), or an arm injury which does not disrupt overall
functioning (See Thrall_v. Syracuse, 471 N.Y.S.2d 51, rev. 464 N.Y.S.2d 1022), do not
qualify as "significant limitation of use of body function or system". The allegation of
“significant limitation” must, again, be substantiated by credible objective medical
evidence. Mere allegations contained in the plaintiff's affidavit, his attorney's affidavit, or
in the pleadings, are insufficient to prove a "significant limitation". (See Jones v. Sharpe,
472 N.YS.2d 779, aff'd 479 N.Y.S.2d 520); Grotzer y. Levy 133 A.D.2d 67 (1987). Vague
and conclusory statements, without more, by a physician, that an injury is a "significant
limitation" are insufficient as a matter of law. (See Lopez v. Senatore, 65 N.Y. 2d 1017;
Zelanaks v. Clark, 567 N.Y.S.2d 92, 170 A.D.2d 677; Cantanzano v. Mei, 11, A.D. 3d 500
(2004)). It is insufficient to infer a significant limitation from a period of absence from
13
work, even if lengthy, without any medical substantiation indicating a significant limitation
and thus a medical need to refrain from work. (See June v, Gonet, 298 A.D. 2d 811
(2002)). "To accept such an approach would totally frustrate the legislative intent behind
“no-fault” and bring us back to square one by allowing every "whiplash" case to reach a
jury through the mere stratagem of having a plaintiff stay out of work for a "significant"
period of time. (See Daviero
v. Johnson, 110 Misc. 2d 381).
(c) Medically Determined Injury or
Impairment - Non-Permanent - 90/180 Days:
A tripartite test must be used to meet the threshold requirement of this section of
the Insurance Law.
First, the Legislature has made it abundantly clear that a disability falling within this
threshold period must be proved by credible medical evidence. (See Licari_v. Elliot, 57
N.Y.S.2d 230). Where a court has determined that a medical doctor has exercised
speculation based on the subjective complaints of the plaintiff as to alleged permanency
or disability, it has held that such medical evidence is, by definition, tenuous and is
insufficient to meet the threshold requirements as a matter of law. Such medical evidence
does not rise to the level of "credible medical evidence” required to support a claim of
permanency. See Giordano v. Ramos, 2 A.D. 3d 676 (2003); Dwyer v. Tracey, 105 A.D.2d
476, 480 N.Y.S.2d 781 (1984).
Secondly, the injury or disability must prevent the person from performing
substantially all of this person's usual customary daily activities, "Substantially all" must
be construed to mean that the person has been curtailed from performing his usual
14
activities to a great extent, rather than some slight curtailment. (See Licari v. Elliot, 57
N.Y.S.2d 230).
Finally, the inability to perform substantially all of one's usual daily activities for not
less than ninety (90) days during the immediate one hundred eighty (180) days following
the occurrence is an absolute condition precedent, in the absence of permanency, in
meeting the threshold. (See Defillipo v. White, 101 A.D.2d 801, 475 N.Y.S.2d 141); Malloy
v. Brisco 583 N.Y.S.2d 290 (1992), There is no legal short-cut to this requirement.
15. The issue as to whether the plaintiff has an injury that qualifies under the
New York State threshold law, is first for the Courts. In a case for summary judgment,
the defendant has the initial burden of producing evidence that the plaintiff's injuries do
not fall under the New York State threshold law. The plaintiff then has the "burden of
coming forward with sufficient evidentiary proof...to raise a triable issue of fact as to
whether he has suffered a serious injury within the meaning of the no-fault law." Zoldas
vy. Louis Cab Corporation, 108 A.D.2d 378, 489 N.Y.S.2d 468; See Ocasio
v. Henry, 714
N.Y.S. 2d 139 (2000).
16. The plaintiff in this proceeding fails to qualify under any of the sections of
the New York State Insurance Law, previously discussed. Plaintiff did not suffer a
disability which would qualify him under the 90/180 day rule. Nor did the plaintiff suffer
permanent loss of use of a body organ, member, function or system or a permanent,
consequential limitation of body organ or member. A careful review of the medical
records attached to this motion reveal that the minor injury sustained by the plaintiff are
15
essentially the type of injuries which the Legislature sought to exclude from the Courts of
our State by passage of the no-fault insurance law.
17. The plaintiff has failed to sustain his burden of demonstrating, with evidentiary
facts, that a trial is required; he has failed to do more than repeat the conclusory
allegations of the complaint. (See Fishman v. Nassau County, 444 N.Y.S.2d 146; Fresh
Meadow Country Club v. Village of Lake Success, 158 A.D. 2d 581 (1990)). In short, there
exists no triable issue of fact.
WHEREFORE, it is respectfully prayed that the motion herein be granted in all
respects and for such other and further relief as to this Court may be deemed just and
|
proper.
Dated: Westbury, New York
October 24, 2013.
iy
( Ayfh
\ NDREA E. FER
16
EXHIBIT “A”
@2/98/2812 14:16 7186159468 ZWIRN AND SAULINO PC PAGE 82/14
NYSCEF Do BO.
BENS
A
¥GUERE 1370772017) INDEX NO. 7009467202
RECEIVED NYSCRR; 18/07/2012
INDEX no.
SUPREME COURT of the STATE OF PlaintlH(s} designates
NEW QUEENS
YORK COUNTY OF QUEEN:
eee a arn nee canteen nti County as ihe place of tol
‘The basis of venue ls
ANA PASTRANA and CARMEN QUINIO, "Praintiffs Residence"
SUMMONS WITH VERIFIED COMPLAINT
Plaintifi(s),
Plaintiff’s Residence:
~against~ 48-44 65" Street
Woodside, NY 11377
PETER GIRANI, EGIDIO GIRANI and
JACQUELINE LARROCA,
Defendant(s),
meet atta Peete treme
‘To the above named Oetandanis)
- ¥QU ARE HEREBY SUMMONED to an: ewer the complaint in this
action and to serve a copy
of your answer, or, ifthe complaint is not served with this
summons, to serve a notice of appearance, on
the Plaintiff's Attomney(s) within 20 days afterth fe Service of this
su immons, oxclusive of the day of
service (or within 30 days after the service is complete If this sumi
mons is not personally delivered to
you within the State of New York); and in case of ‘your failure to
appear or answer, judgment wil] be
taken against you by default for the relief demanded herein.
Dated: BROOKLYN, NEW YORK
DECEMBER 7, 2011
ZWIRN & SAULINO, PC.
Attorney far Plaintitt
Notice: The object of this action isto
Diflce and Post Office Attlress
recover for personal injury 2806 East 15% Street, Suite 205
Brooklyn, Mew York 11235
due to dufendant(s) negligence
(718) 513.7400
The retief soughtis Monetary Damages
Upon your failure to. appear, judgment will be taken ‘egainst you by default
fur the sum which excrads the Jurisdiction of alf lower courtswhich
would otherwise have jurisdletlon and whlch warrants the Jurisdist
ion of this court with interest from duly 26, 2010 snd the costs of
this action
DEFENDANT(S) ADDRESS(ES)
PETER GIRANT
56-44 196" Street
EGIDIO GIRANT JACQUELINE LARROCA
47-68 Weeks Lane 48-44 65" Street
Fresh Meadows, NY 11365 Flushing, NY 11361 Woodside, NY 11377
2/08/2812 14:16 7186159466 ZWIRN AND SAULING PC PAGE @3/14
SUPREME COURT OF THE STATE OF
NEW YORK
COUNTY OF QUEENS
saan renteen enepo meX
ANA PASTRANA and CARMEN QUINIO
VERIFIED
Plaintifits)
|
COMPLAINT.
~againat-
inpexa 70094
PETER GIRANI, EGIDIO GIRANT and JAC
QUELINE
LARROCA,
Defendant(s),
wane atten
Plaintiff(s), complaining of the defendants by their attorney
upon information and belief,
respectfully allege(s)
AS A RA FIRST CAUSE FE JON
ON BEHALF OF PLAINTIFF ANA PASTRANA
1 That on July 26, 2010 on a public highway called Francis Lewis
Boulevard at or near its
intersection with 47" Avenue in the County of Queens, State of
New York, the defendant PETER
De >5
GIRANI negligently drove a motor vehicle beating Registration
#: 96820JL NEW YORK into another
motor vehicle in which plaintiff was a passenger.
De
2 That this action falls within one or more of the exceptions
set forth in CPLR 1602.
De
3 That at the time of the commencement of this action, Plaintiff
ANA PASTRANA was.
and still is, a resident of the County of Queens and State
of New York.
4 That at the time of the commencement of this action, Defendant
De PETER GIRANI vas,
atid stil] is, a resident of the County of Queens, State
of New York,
5 That at the time of the commencement of this action,
me Defend ant EGIDIO GIRANI was,
and stilli is, a resident of the County of ‘Queens, State
of New York.
6. That on July 26, 2010, motor vehicle bearing Regist
ration #: 96820JL, NEW YORK was
oe owned by defendant EGIDIO GIRANI,
02/08/2012 14:18 7186159458 ZWIRN AND Salt -ING PG PAGE 64/14
7 That on July 26, 2010, motor vehi
cle bearing Registration #: 96820I
L NEW YORK was
Sy operated by defendant PETER GIRANI
,
8 That on July 26, 2010, at or near
the location mentioned above, motor
vehicle bearing
Vv
oO Registration #: 968207L NEW YOR
ae K and owned by PETER GIRANT
and operated by EGIDIO
GIRANI, made contact with a motor vehicle
bearing Registration 4: BPZ4942 NEW YOR
K,
r 9. That on July 26, 2010, motor vehigle bearing
Noe Registration #: 968207L NEW YORK was
operated by defendant PETER GIRANT with the permission and consent of the owner,
EGIDIO
GIRANL
10. That on July 26, 2010, motor vehicle bearing Regis
tration 4: 96820IL NEW YORK, was
er operated by defendant PETER GIRANI withi
n the scope of his employment.
Il. ‘That at all times herein mentioned, solely as a result
of the defendant! 's negligence as
aforesaid, , plaintiff has sustained a serious personal
injury and/or impairment which resulted in
<0 dismemberment; significant disfigurement; fracture;
permanent loss of a body organ, or member;
significant imitation of use of'a body function or
system; loss of normal pursuits and pleasures of
life;
and/or a medically determined injury or impairment which
prevents plaintif€ from performing
substantially all of the material acts which cotistituted
plaintiff's usual and customary activities for such
period of time all as specified by Section 5102
of the Insurance Law, Subsection (d); in all to his
damages both compensatory and exemplary in the
sum which exceeds the Jurisdiction of all lower
courts
which would otherwise have jurisdiction and whic
h warrants the jurisdiction of this court,
FOR A SEC! USE. CTIO)
ON BEHALF OF PLAIN TIFF ANA PASTRA
NA
12, That on July 26, 2010 ona public highway
calledFrancis Lewis Boulevard at or near its
intersection with 47" Avenue in the County of Queens, State
of New York, the defendant
0 JACQUELINE LARROCA negligently drove
a motor vehicle bearing Registration #: EPZ4
942 NEW
YORK, in which the plaintiff was a passenger,
into another motor vehicle.
82/08/2812 14:18 71861594548 ZWIRN AND SAULINO PC PAGE 85/14
13 That this action falls within one or mor
e of the exceptions set forth in CPLR
1602
14 That at the time of the commencem
ent of this action, Plaintiff ANA,
PASTRANA was,
? AEXi and still is, a resident of the County of
Queens and State of ‘New York,
15, ‘That at the time of the commencement
of this action, Defendant JACQUELIN
E
LARROGA was, and still is, a resident of the
County of Queens, State of New York.
16, That on July 26, 2010, motor vehicle bear
ing Registration #: EP24942 NEW YOR
K was
owned by defendant LARROCA.
17, That on July 26, 2010, motor vehicle bear
ing Registration # EPZ4942 NEW YORK
was
operated by defendant LARROCA,
18 That on July 26, 2010, at or near the location
mentioned above, motor vehicle bearing
Registration #; EPZ4942 NEW ‘YORK and owned and
ibe operated by LARROCA,
~~ made contact with a
motor vehicle bearing Registration #: 968203L NEW
YORK.
19. That on July 26, 2010, motor vehicle bearing
Registration #: EPZ4942 NEW YORK was
v operated by defendant LARROCA within the scope
of ker employment.
20. That at all times herein mentioned, solely ay a resul
t of the defendant’ 's negligence as
aforesaid, plalatiff has sustained a serious perso
nal injury and/or impairment which resulted
In
O dismemberment; significant disfigurement: fract
ure; permanent loss of a body organ, or memb
er;
significant limitation of use of'a body fiviction
or system; loss of normal pursuits and pleasures
of life
and/or a medically determined tajury or impa
irment which prevents plaintiff from performi
ng
substantially all of the material acts which const
ituted plaintiff's usual and customary activities
for such
period of time all as specified by Section 5102
of the Insurance Law, Subsection (d); in all to his
damages both compensatory and exemplar
y in the sum which exceeds the jurisdic
tion of all lower courts
which would otherwise have Juvisdiction and
which warrants the jurisdiction of this court.
a2/ee/2812 14:16 7186159468 2WIRN AND SAUL-IND PC PAGE 665/14